William & Mary Bill of Rights Journal
Volume 19 (2010-2011) Issue 2
Article 2
December 2010
Constantly Approximating Popular Sovereignty: Seven Fundamental Principles of Constitutional Law
Wilson R. Huhn
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Repository Citation Wilson R. Huhn, Constantly Approximating Popular Sovereignty: Seven Fundamental Principles of Constitutional Law, 19 Wm. & Mary Bill Rts. J. 291 (2010), https://scholarship.law.wm.edu/ wmborj/vol19/iss2/2
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CONSTANTLY APPROXIMATING POPULAR SOVEREIGNTY:
SEVEN FUNDAMENTAL PRINCIPLES OF
CONSTITUTIONAL LAW
Wilson R. Huhn* constantly looked to, constantly labored for, and even though never perfectly attained, constantly approximated . . . .1
In 1988, renowned historian Edmund S. Morgan published Inventing the People:
The Rise of Popular Sovereignty in England and America.2 In that brilliant and
wide-ranging book Morgan traces how, between the time of the English Civil War in the mid-seventeenth centuryand the adoption of the American Constitution in 1787, the idea of “popular sovereignty”—the right of the people to govern themselves— replaced the notion of “the divine right of kings” as the acknowledged source of political power.3 The central theme of Morgan’s work is that while popular sovereignty is a “fiction” in the sense that the people of a nation cannot actually rule themselves without creating a government,4 over the centuries our ancestors constantly labored to create a society and a government which gradually came closer to the realization of that principle—a closer approximation of the ideal of popular sovereignty.5 At the end of Inventing the People, Morgan concludes:
* C. Blake McDowell, Jr., Professor of Law, University of Akron School of Law; B.A.
Yale University, 1972; J.D. Cornell Law School, 1977. I wish to thank my colleagues, Tracy Thomas, Elisabeth Reilly, and Richard Aynes, for their valuable comments and suggestions, and my research assistant, Joshua Dean, for his untiring efforts. This research was funded with a summer fellowship from The University of Akron School of Law.
1
Abraham Lincoln, Speech at Springfield, Illinois (June 26, 1857), reprinted in 2
COLLECTED WORKS OF ABRAHAM LINCOLN 406 (Roy P. Basler ed., 1953) [hereinafter COLLECTED WORKS] (referring to the “standard maxim for free society” that “all men are created equal”).
2
EDMUND S. MORGAN, INVENTING THE PEOPLE: THE RISE OF POPULAR SOVEREIGNTY
IN ENGLAND AND AMERICA (1988).
3
See id. at 54 (“[T]he paths taken in both England and America were first laid out in seventeenth-century England when Parliament challenged the king and replaced divine right with the sovereignty of the people.”); id. at 255–56 (summarizing the work of the Levelers, John Locke, and other English citizens from that era who developed the principle of popular sovereignty).
4
See id. at 13 (“Government requires make-believe.”). See id. at 152 (“The history of popular sovereignty in both England and America after
5
1689 can be read as a history of the successive efforts of different generations to bring the facts into closer conformity with the fiction, efforts that have gradually transformed the very structure of society.”).
291
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[Vol. 19:291
From its inception in the England of the 1640s the sovereignty of the people had been filled with surprises for those who invoked it. It was a more dynamic fiction than the one it replaced, more capable of serving as a goal to be sought, never attainable, always receding, but approachable and worth approaching. It has continually challenged the governing few to reform the facts of political and social existence to fit the aspirations it fosters. The presumption that social rank should convey a title to political authority was only the first casualty in its reformations, and we have not yet seen the last. The fiction endures. The challenge persists.6
The principle of popular sovereignty is what distinguished the new American republic from every other nation which preceded it in human history.7 Popular sovereignty remains the single most important animating principle of American constitutional law. But the concept of popular sovereignty is not a simple, unitary idea; instead, it comprises a number of interrelated and mutually reinforcing elements. In particular, the American conception of popular sovereignty embraces the following seven fundamental principles:
1. The Rule of Law. The people are sovereign and their will is expressed through law. The Constitution is ordained and established as law—the supreme law of the land.
2. Limited Government. The people are sovereign, not the government.
By adopting the Constitution the people created the government, imposed limits upon its power, and divided that power among different levels and branches.
3. Inalienable Rights. Every individual person is sovereign in the sense that he or she retains certain inalienable rights, which the government is bound to respect.
4. Equal Political Rights. Each person is a sovereign political actor; therefore each person has an equal right to participate in government. Accordingly, the Constitution protects freedom of political expression, freedom of political association, the equal right to vote, and the principle of majority rule.
5. Separation of Church and State. The people are sovereign, not God.
Laws reflect the will of the people, not the presumed will of God.
6
Id. at 306.
7
See Akhil Reed Amar, The Central Meaning of Republican Government: Popular
Sovereignty, Majority Rule, and the Denominator Problem, 65 U. COLO. L. REV. 749, 761
(1994) [hereinafter Amar, Central Meaning] (referring to the people’s adoption of the Constitution of the United States as “the most participatory, majoritarian (within each state) and populist event that the planet Earth had ever seen”).
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CONSTANTLY APPROXIMATING POPULAR SOVEREIGNTY
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Religious authority is not a legitimate basis to support the enactment or interpretation of any law or the adoption of any official practice.
6. The Power of the National Government Over the States. The American
people are sovereign, not the states. No state has the power to secede from the union or to nullify any federal law. The states retain only those powers not granted to the federal government or reserved to the people.
7. Nationa l I ndependenc e a nd th e L imite d A uthorit y o f I nternationa l L aw.
The American people as a whole are sovereign and independent and are not subject to any foreign law or power. The political representatives of the American people have the power to abrogate treaties or other forms of international law.
Over the centuries each of these constitutional principles has blossomed and borne fruit. As Morgan predicted, the principle of popular sovereignty in all of its manifestations has continued to change and develop, resulting in profound changes in the interpretation of the Constitution.8
Part I of this article defines the meaning of the term “sovereignty” generally.
Part II describes how the concept of popular sovereignty was understood in America at the time of the founding and during the antebellum period, particularly as it found expression in the Declaration of Independence and the speeches of Abraham Lincoln. Part III of this article discusses the seven principles which are implicit in the American concept of popular sovereignty, and how the evolving nature of our understanding of these principles has affected the interpretation of the Constitution down to the present day.
I. THE MEANING OF “SOVEREIGNTY”
I use the term “sovereignty” to mean “the right to rule.”9 I refer to sovereignty as a “right” because sovereignty is more than the mere possession or exercise of power. When the people of a society regard their ruler as a sovereign, if that ruler is deposed the people still consider that person to be the rightful ruler.10 For that reason, and not because of the former leader’s virtues or for reasons of political expediency, the people may attempt to restore the former ruler to power. Sovereignty is a psychological and sociological determinant which affects the political life of the nation.
People of different societies may profoundly disagree in their understanding of where sovereignty resides. Over time and in different places people have held wildly
8
See TimothyZick, Are the States Sovereign?, 83 WASH.U.L.Q. 229, 283 (2005) [hereinafter Zick, Are the States Sovereign?] (“[S]overeignty has never in fact been the bright line Classicists embrace. It is, rather, a still-evolving concept that admits of no easy definition.”).
9
See DANIELFARBER,LINCOLN’SCONSTITUTION 27 (2003) (“When Americans debated sovereigntybefore the Civil War, they were debating the ultimate locus ofpolitical authority.”).
10
JOHN NEVILLE FIGGS, THE DIVINE RIGHTOFKINGS 5–6 (2d ed. 1914); MORGAN, supra
note 2, at 18.
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[Vol. 19:291 divergent opinions about the ultimate source of political power. People in some societies have believed that the right to rule is determined by the will of God.11 In the past, monarchs rested their claim to power upon “the divine right of kings.”12 Even in the present day, the Saudi royal family and the Supreme Leader of Iran contend that theyareentitled torulebecausetheyuniquelyrepresentand defend Islamicprinciples.13 In other societies sovereignty is thought to arise from superior knowledge or adherence to a “true” political philosophy. For example, in some countries the Communist Party has based its claim to the leading role in society14 upon the premise that it possesses a superior understanding of history and economics.15 In the United States, however, all just powers of government are derived “from the consent of the governed,”16 a principle which is known as “popular sovereignty.”17 As mentioned above,
11
See FIGGS, supra note 10, at 5–6 (discussing the theory of the divine right of kings).
See J.C. D.CLARKE,ENGLISH SOCIETY, 1688–1832: RELIGION,IDEOLOGY AND POLITICS
12
DURING THE ANCIEN REGIME 86–87 (1985); MORGAN, supra note 2, at 18.
13
See Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures
or a Clash with a Construct?, 15 MICH. J. INT’L L. 307, 364 (1994) (referring to “Iran’s theocracy” and the fact that Saudi Arabia’s Basic Law endorses “the divine right of Saudi
kingship”); Neil Shevlin, Velayat-E Faqih in the Constitution of Iran: The Implementation
of Theocracy, 1 U. PA. J. CONST. L. 358, 365 (1998) (describing the influence of Ayatollah Khomeini’s teaching that “there should be no distinction between religion and government in an Islamic state” on the Iranian Constitution).
14
See XIANFA pmbl. (2004) (China) (referring to “the people’s democratic dictatorship” whichineffectgrantscontrolto theCommunistParty);JOSEONMINJUJU-UI-INMINGONGHWAGUG SAHOEJU-UI HEONBEOB [Constitution] art. 12 (1998) (N. Korea) (“The State shall adhere to the class line, strengthen the dictatorship of people’s democracyand firmly defend the people’s power and socialist systemagainstallsubversiveactsofhostileelementsathome and abroad.”); KONSTITUTSIIA SSSR (1977) [KONST. SSSR] [USSR Constitution] art. 6 (“The leading and guiding force of the Soviet society and the nucleus of its political system, of all state organisations and public organisations, is the Communist Party of the Soviet Union.”).
15
See, e.g., VLADIMIR ILYICH LENIN, EIGHTH CONGRESS OF THE R.C.P.(B.): REPORT ON
THE PARTY PROGRAMME (Mar. 19, 1919), reprinted in 3 V.I. LENIN: SELECTED WORKS 152
(1967) (“[A]ll countries are on the way from medievalism to bourgeois democracy or from bourgeois democracy to proletarian democracy. This is an absolutely inevitable course.”);
VLADIMIR ILYICH LENIN, WHAT IS TO BE DONE: BURNING QUESTIONS OF OUR MOVEMENT
(1902), reprinted in 1 V.I.LENIN:SELECTEDWORKS104 (1967) (rejecting democratic methods of reform in the belief that it would lead only to trade-unionism, and in particular rejecting “freedom of criticism,” stating, “[t]hose who are really convinced that they have made progress in science would not demand freedom for the new views to continue side by side with the old, but the substitution of the new views for the old”); see also VLADIMIR ILYICH LENIN, EIGHTH
PARTY CONGRESS OF THE R.C.P.(B.): REPORT ON THE PARTY PROGRAMME (Mar. 18, 1919),
reprinted in 29 V.I. LENIN:COLLECTED WORKS 151 (1965) (threatening the middle peasants and the petty bourgeoisie that if they join forces with the bourgeoisie, “we shall be obliged to apply the measures of the proletarian dictatorship to you, too,”—that is, they “will be stood against the wall”).
16
THE DECLARATION OF INDEPENDENCE para. 2 (U.S. 1776).
NathanTarcov, Popula r S overeignt y ( I n D emocrati c P olitica l T heory), in 3 ENCYCLO-
17
PEDIA OF THE AMERICAN CONSTITUTION 1426 (1986).
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Edmund Morgan has traced the growth and development of the idea of popular sovereignty from its antecedents in England to its ultimate acceptance at the founding of the United States.18
The term “sovereignty” has been the subject of much scholarly criticism.19 For example, at the conclusion of a series of two articles perceptively critiquing how courts and commentators have employed the concept of sovereignty, Professor Jack N. Rakove states, “Sovereignty is too vague and anachronistic a term to allow us to reason about anything more than our propensity to keep using it.”20
In one sense, Professor Rakove is right. The term “sovereignty” does not refer to a definite legal formula which can be syllogistically applied to resolve specific questions of law. However, even though sovereignty is not a precise legal doctrine, I believe that Professor Rakove is wrong to dismiss the importance of the concept of sovereignty, particularly with respect to constitutional analysis. Sovereignty is a belief system; it is a psychological or sociological construct that represents a society’s fundamental understanding of the proper source and allocation of political power. In the United States, the sovereignty of the people comprehends a welter of interlocking values which include the rule of law, limited government, personal autonomy, the democratic process, the separation of church and state, the reserved powers of the States, and national identity. Insofar as constitutional law represents the sum and interplayof fundamental American politicalvalues, the concept of popular sovereignty plays a valuable and important role in the interpretation of the Constitution.
Furthermore, because our society is organized on many levels, a theory of sovereignty must be capable of explaining the allocation of power within and among the different segments of society. It is unrealistic or at least anachronistic to speak of sovereignty as if a single individual or institution might claim the right to exercise all power within a society. Any theory of sovereignty must take into account the allocation of political power among individuals, administrative agencies, political subdivisions, the national government, foreign nations, and international bodies. This article describes how the concept of popular sovereignty has affected the interpretation of the Constitution in all of those various contexts.
II. POPULAR SOVEREIGNTY AT THE TIME OF THE FOUNDING AND IN THE
ANTEBELLUM PERIOD
Professor Morgan and other scholars have richly described how the concept of popular sovereignty was germinated in the English Civil War and how it came to
18
See generally MORGAN, supra note 2. See Jack N. Rakove, Making a Hash of Sovereignty, Part II, 3 GREEN BAG 51 (1999).
Id. at 59; see also STEPHEN D. KRASNER, SOVEREIGNTY: ORGANIZED HYPOCRISY 3
19 20
(1999) (referring to disagreement among scholars about the nature and significance of sovereignty, and stating, “This muddle in part reflects the fact that the term ‘sovereignty’ has been used indifferentways.”); id. (identifying four different categories of sovereigntyfor purposes of international law: “international legal sovereignty, Westphalian sovereignty, domestic sovereignty, and interdependence sovereignty”).
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[Vol. 19:291 fruition in America during and after the Stamp Act crisis of 1765.21 In the Glorious Revolution of 1688, Parliament deposed James II and installed in his place William III and Mary II.22 In the Declaration of Right of 1689, Parliament overthrew the principle of the divine right of kings and declared itself sovereign.23 However, as a practical matter Parliament did not exercise authority over the American colonies.24 The charters of the American colonies had been granted by the King, and during the seventeenth and eighteenth centuries the colonies had grown accustomed to governing themselvesbymeansofelected coloniallegislaturesoperatingunderroyalgovernors.25 Even after the Glorious Revolution, Parliament was largely content to allow the King to rule the colonies in this manner.26 When Parliament finallyasserted itself in America in the 1760s by enacting unpopular laws such as the Sugar Act and the Stamp Act, the colonists rebelled,27 asserting that Parliament lacked the power to regulate or to tax them because the colonists were not represented in Parliament.28 However, the colonists did not seek representation in Parliament;29 instead they sought the freedom to make their own laws.30
The Americans and the British failed to compromise their differences over these matters in part because they held incompatible understandings about the nature and location of sovereignty.31 The British considered sovereignty to be a single, unitary
21
See, e.g., MORGAN, supra note 2, at 146–48.
See id. at 105–07 (describing the transfer). See id. at 94–121 (describing the Glorious Revolution). Id. at 122 (“[T]hose who settled England’s American colonies were building soci-
22 23 24
eties where the authority of England’s king was ostensibly undiluted by his unruly English Parliament.”).
25
See id. at 122–30 (describing the development of the colonial legislatures). See id. at 145 (“As long as the systemworked, both sides could and did take considerable
26
pride in it . . . .”).
27
See id. at 239 (“The Americans’ quarrel with England began, as everyone knows, with the attempt of Parliament to levy taxes on the colonists in the Sugar Act of 1764 and the Stamp Act of 1765.”).
28
See id. at 213 (“Boston led the way in May 1764 when Samuel Adams opened his public career as a revolutionary by drafting instructions for the Boston representatives, denouncing the levying of taxes on colonies by Parliament.”); id. at 231 (“When Parliament undertook in the 1760s and 1770s to bind the colonists with legislation contrary to their wishes, the colonists had ready-made representative bodies to challenge the credentials of an English House of Commons to speak for them.”); see also Circular Letter from the Select-Men of Boston to the Gentlemen Select-Men of Charlestown (Sept. 14, 1876), available at http://www.masshist .org/revolution/doc-viewer.php?item_id=259&mode=nav(“Taxesequallydetrimentaltothe Commercial interests of the Parent Country and her Colonies, are imposed upon the People, without their Consent . . . .”).
